In the quest to save money by doing everything themselves, business owners and entrepreneurs may overlook certain post registration legal requirements which may haunt their companies in the future with large statutory fines and penalties. Most business start-ups are required to make tough decisions where the allocation of resources is concerned, especially if the owner is bootstrapping its operations. Paying statutory fines must never reach on your to-do list.
In a previous article, we looked at the process of registering a company at Registrar General in Trinidad and Tobago. Today, we look at 8 post registration legal requirements if left unattended can break your pocket or cause great headache. They are:
1- Appointment of Company Secretary
Section 61 of the Companies Act, Chapter 81:01 requires the appointment of a company secretary and the subsequent filing of the relevant document within 30 days of their appointment or where an individual ceases to act as the company secretary. The directors of a company will usually appoint a company secretary through a board resolution. In some situations, however, the byelaws of the company may make provisions on how a secretary is appointed. If there is a stipulation within the byelaws, then its provisions must be adhered to. The secretary of a company can be an individual, firm (partnership) or company.
A director or authorised officer of the company will be required to complete and submit a Notice of Secretary or Notice of Change of Secretary – Form 27 at the Companies Registry. There is a processing fee of $40. Failure to file the Notice of Secretary within the stipulated timeline will attract a penalty of $300 for every month or part thereof that the person or company fails to deliver or file the document to the Companies Registry.
2- Changes of Registered Address
Section 176(2) of the Companies Act, Chapter 81:01 requires that a company notify the Companies Registry via a Notice of Address or Notice of Change of Address of Registered Office – Form 4 of any change of its registered address within 15 days. All companies registered under the Companies Act must maintain a registered office within Trinidad and Tobago.
The directors, however, may change the address of the registered office at any time. Failure to file the Notice of Registered Address within the stipulated timeline will attract a penalty of $300 for every month that the person or company fails to deliver or file the document to the Registrar General.
3- Filing of Annual Returns
Section 194 of the Companies Act requires that an annual return must be filed no later than thirty (30) days after each anniversary date of the incorporation/ continuance of a company. An annual return provides an update of the company’s registered address, shareholding, directors, secretary, debt, and beneficial owners.
An authorised representative of the company is required to complete and submit an Annual Return (Profit) – Form 28 to Companies Registry.
It is important to note that a company must prepare and file this document to Companies Registry regardless of whether it has been trading or not. Furthermore, please be aware there are different forms for profit and non-profit companies. This document also incurs a penalty of $300 per month for the failure to file within the stipulated timeframe.
4- Return of Issuance or Transfer of Shares
Section 337D(1) of the Companies (Amendment) Act 2019, requires that companies complete and submit a Return of Issuance or Transfer of Shares – Form 46 to the Companies Registry. This document must be filed within 30 days of the issuance or transfer of shares by a company.
The return details the class and number of shares, amount of capital, name of the shareholder (whether an individual or company), address or registered office, occupation or status, nationality or jurisdiction of incorporation, date of registration and beneficial owner of the shares.
Where a company fails to comply with the filing of the Form 46 within the stipulated timeframe, every director and officer is liable on summary conviction to a fine of ten thousand dollars and to imprisonment for three years and for every day in which the offence continues, a further fine of three hundred dollars.
5- Return of Beneficial Ownership
Section 337 of the Companies (Amendment) Act 2019 requires companies to ascertain and obtain information of the beneficial owners of locally incorporated and external companies with the exception of public traded companies on local stock exchange.
This information must to be disclose to the Companies Registry by the filing of Return of Beneficial Interest in the Shares of a Company – Form 45 within 30 days of the receipt of the statutory declaration from a beneficial owner or shareholder.
There are significant penalties for non-compliance which upon summary conviction includes a fine of $10,000 and an additional fine of $300 for every day which the offences continues along with imprisonment for three years.
6- Application for BIR and PAYE Number
It is mandatory for all companies to obtain a Board of Inland Revenue (BIR) and Pay as you Earn (PAYE) number. A BIR number is used for payment of taxes while a PAYE number is used to remit taxes withheld from employees under the Income Tax Act.
To obtain a BIR and PAYE number, a company must complete an Application for Company File Number, PAYE Number and VAT Registration and submit it to one of the Board of Inland Revenue Division offices in Port of Spain, San Fernando or Tobago. There is no filing or processing fee for this service. The signed application form must be submitted with the following:
- Original and copy of certificate of incorporation;
- Original and copy of notice of directors;
- Original and copy of notice of address; and
- Copy of one form of photo identification for each director.
7- Application for VAT Number (if applicable)
Sections 20 and 21 of the Value Added Tax Act makes provisions for all registered businesses in Trinidad and Tobago with commercial supply of over $500,000 to become registered under the Act.
The form used in the registration of a VAT number is the same as the one used for BIR and PAYE numbers. The signed application form must be submitted along with the same documents required for the BIR number but with the following additional documents:
- Copies of bank statements showing deposits of more than $500,000 over a twelve-month period;
- Copies of sales invoices to be used as evidence of trading.
An unregistered person who makes a commercial supply of over $500,000 within a twelve-month period and fails to register for VAT commits an offence and is liable on summary conviction to a fine of fifteen thousand dollars and imprisonment for one year.
8- Application for National Insurance Number (if applicable)
From a legal perspective, a company is a separate entity from its shareholders (owners) and its directors. As a result, a company is seen as an employer and must apply for a National Insurance number once employees exist inclusive of the directors.
Section 29 of the National Insurance Act makes provisions for both employers and employees to become registered under the Act. Employers are required to fill out a NI 1 form and submit to it to any branch of the National Insurance Board (NIB).
Upon submission, the company will be contacted by a Compliance Officer at the NIB who conduct an audit on the company ensuring it meets the requirements for registration under the National Insurance Act as well as explain the employer’s obligations under the Act.
It is important to note that on the commencement of employment with a Company it is best practise to ensure that employees complete and submit NI4 form to National Insurance Board to ensure that during their time at the Company their National Insurance number is linked to it.
An employer who fails to register with National Insurance Board shall be liable on summary conviction to a fine of five thousand dollars.
In conclusion, starting a business can be very time consuming and overwhelming. However, regardless of where the wind carries you and your company, please do not neglect the above post registration legal requirements as they can lead to tens of thousands of dollars in fines and penalties. If you need any assistance filing any of the requirements contained in this article, schedule a free consultation today and speak to one of our competent advisors.
